Going Rogatory: How a Congressional Committee Might Subpoena Julian Assange

Back in 2013, we discussed the possibility that a congressional committee could subpoena Edward Snowden, a U.S. citizen who had fled the country with a lot of defense and intelligence secrets and was living (and still lives) as Mr. Putin’s guest in Russia. As I noted then, congressional committees can attempt to obtain documents or testimony overseas through the use of letters rogatory or requests for legal assistance under applicable treaties, though these are far from guaranteed methods of success. As far as I know, no congressional committee even attempted to subpoena Snowden.

With calls for congressional investigation of Russia’s alleged interference in the 2016 presidential election, one or more committees may now face the issue of attempting to subpoena Julian Assange, the founder of Wikileaks and a key witness in any such investigation. Attempting to secure Assange’s testimony may be even more challenging than trying to get Snowden’s because Assange is not a U.S. citizen and he resides in the sovereign territory of one country (Ecuador) located in another (the UK). Specifically, Assange lives in the Ecuadorian embassy in London.

Before getting into how a committee might attempt to procure Assange’s testimony, it should be noted that the committee would be wise to get authorization from its chamber to seek information abroad. As Mort Rosenberg explains in his forthcoming book, such authorization has traditionally been the first step in requesting international assistance to obtain information:

Since 1974 ten special congressional investigating committees have been vested with authority to request the judicial assistance of U.S. courts to take depositions or access information in foreign jurisdictions through the vehicle of letters rogatory and to seek other means of international assistance in gathering information in foreign countries.

Morton Rosenberg, When Congress Comes Calling: A Study of the Principles, Practices, and Pragmatics of Legislative Inquiry (anticipated January 2017 publication). Such authorization, to be sure, is not a magic wand that entitles the committee to all (or any) foreign discovery it desires. It may not even be legally necessary, but it does give the committee an “imprimatur of authority to utilize formal judicial and international treaty processes,” as well as serve “to give legitimacy to less formal ventures to obtain necessary information.” Id.

Thus, whether the investigation is conducted by a special committee or a permanent committee, it makes sense for the House or Senate to adopt a resolution specifically authorizing the committee in question to use means of international assistance to obtain information overseas. The committee also needs deposition authority (if it doesn’t have it already) since Assange and other foreign witnesses almost certainly cannot be compelled to travel to the United States to participate in a hearing. Finally, for reasons explained below, the committee should be authorized to effectuate service by means other than traditional personal service.

Continue reading “Going Rogatory: How a Congressional Committee Might Subpoena Julian Assange”

The Right Way to Change the Senate Rules: A Response to Ilya Shapiro and Others

Ilya Shapiro argues here that Senate Majority Leader Mitch McConnell should use the nuclear option to eliminate the filibuster for Supreme Court nominees. Like many others, he does not seem to have any rule of law concerns with the use of the nuclear option, but it is not clear that he fully understands it either.

Shapiro notes that he “had been arguing to colleagues that McConnell should preemptively use his majority to eliminate the judicial filibuster, maybe even before Trump is inaugurated [but] a friend with intimate knowledge of Senate procedure informed me that it couldn’t be done in the abstract regardless”:

That’s because eliminating judicial filibusters isn’t a matter of changing the Senate rule on “cloture,” which says that 60 votes are needed to proceed to any final vote (short of “reconciliation”—see Obamacare—and other special situations). This rule has never been changed: Reid simply had the Senate majority adopt a “precedent,” in the context of D.C. Circuit nominee Patricia Millett, that cloture shall mean 51 votes for non-Supreme Court nominees.

Shapiro is right about what Senator Reid did on November 21, 2013 (Reid raised a point of order in the context of a particular nomination), but he is wrong (or his friend is wrong) that this is the only way to exercise the nuclear option. McConnell could exercise the nuclear option “in the abstract” for two reasons. First, McConnell could simply offer a motion to amend the Senate rules and then raise a point of order that cloture on such a motion is by a simple majority. The presiding officer would then presumably rule against the point of order, McConnell would appeal the ruling to the full Senate, and the Senate (acting by a simple majority) would reverse the presiding officer’s ruling. Following the “logic” of the Senate’s November 21, 2013 exercise of the nuclear option, this action would set a “precedent” permitting the Senate to end debate on motions to amend the rules by simple majority.

Such an action would be wrong because Rule XXII clearly requires a two-thirds vote to end debate on a motion to amend the rules, but it would actually be a less lawless (note I did not say “lawful”) means of changing the filibuster than merely setting a “precedent” that contradicts the plain text of the written rule. For example, suppose the Senate used this method to change Rule XXII so that it now required only a simple majority to end debate on either motions to amend the rules or on any nomination, but continued to require a supermajority to end debate on legislation. If subsequently an attempt were made to use the nuclear option to end the legislative filibuster, it might be persuasively argued that the November 21, 2013 precedent was no longer valid and that the proper means of changing the rules is to amend them, rather than to pretend that they say something else.

The second reason that Senator McConnell could seek to change the filibuster rule outside the context of a particular nomination or other pending measure is that this is how opponents of the filibuster have been trying to change or eliminate it for about a century. In fact, it was in 1917 that Senator Thomas Walsh first argued that the Senate rules could be changed at the beginning of a new Congress by a simple majority acting under “general parliamentary law.” This argument never prevailed in the Senate but it was frequently advanced over the next 100 years by senators who earnestly contended that the beginning of a new Congress was the only time that the rules could be changed by the action of a simple majority. At the start of at least six different Congresses from 1953-75, serious attempts were made on the floor to change Senate rules based on this theory. See Richard A. Arenberg & Robert B. Dove, Defending the Filibuster 117-41 (2012). In more recent years this theory was championed by senators such as Tom Udall and Jeff Merkley, supported by a group of noted legal academics.

As long-time readers may recall, I am not a big fan of this theory. (see this post and the 9 additional posts cited therein). I might even have made a bit of fun of it from time to time. But at least it was an argument, supported by actual reasons and advanced by distinguished senators and academics. True, the procedure for adopting this theory would have been the same as that used on November 21, 2013 (a ruling by the presiding officer followed by an appeal to the full Senate), which gave rise to well-grounded fears that it would soon render Senate rules subject to the whim of the majority. As Senator Vandenberg warned in a related context in 1948, it would mean that “regardless of precedent or traditional practice, the rules, hereafter, mean whatever the Presiding Officer of the Senate, plus a simple majority of Senators voting at the time, want the rules to mean. We fit the rules to the occasion, instead of fitting the occasion to the rules.”

In theory, however, the version of the nuclear option promoted by Senator Walsh and his successors had some limiting principles: it could only be employed at the start of the Congress and it involved a formal change to the rules, not merely a re-interpretation. The Walsh nuclear option was a wolf in sheep’s clothing, and a poorly-clad one at that, in part because these limiting principles were unlikely to hold. For example, there was no convincing reason why the nuclear option should be confined to the start of a new Congress.

What the Senate did on November 21, 2013, on the other hand, was supported by no principles, limiting or otherwise. As noted in my previous rant (er, post) on this subject, it seems to stand for nothing more than the proposition that “bad faith adjudication is an acceptable means of ‘changing’ the governing law.” As Justice Scalia would have said, this wolf comes as a wolf.

It is understandable that Shapiro and others are impatient with the Senate’s arcane rules and want to get on with confirming a constitutional conservative to the Supreme Court. Thus, Lew Uhler and Peter Ferrara urge here that Senator Reid’s unilateral termination of the filibuster for other nominations “should now be extended to Supreme Court appointments as well” because “[t]urnabout is fair play.” But this rationale, which is more suited to the schoolyard, will unravel what is left of the Senate’s legal system and further undermine respect for the rule of law. In other words, it will contradict the purpose of putting a constitutionalist on the Court in the first place.

(Incidentally, Uhler and Ferrara’s other suggestion of requiring a “talking filibuster” would be permissible because no rules change is needed for that).

As arduous as it may be, the right way for Senate to move forward is to seek the consensus necessary (meaning two-thirds of the Senate) to enact formal changes to the Senate rules. Whether these rules ultimately modify, repeal or reaffirm the use of the filibuster is up to the Senate. What matters is that the Senate decisively repudiate the use of the nuclear option that occurred on November 21, 2013. Only then will it be able to begin rebuilding its legal system.

A Christmas Present for Congress: the Congressional Clerkship Program

On Balkinization, Abbe Gluck and Dakota Rudesill announce that a group of senators, including Ted Cruz and Mike Lee, have revived the idea of a congressional clerkship program:

In this era of gridlock and difficult politics, a bipartisan group of Senators has done something worth celebrating.  On Monday, with the introduction of the Daniel Webster Congressional Clerkship Act, S. 3499, the Senate has taken the first step not only toward busting the judicial clerkship monopoly on mentoring fresh young law graduates but also toward bridging the enormous gap–a gap in both information and respect–between Congress and the courts.

The bill, sponsored by Sen. Mike Lee (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Hoeven (R-ND), and Sen. Ted Cruz (R-TX), would create a dozen clerkship positions in Congress for recent law school graduates, equally divided across chambers and political parties.  The bill envisions them competitively funded at the same level as their federal judicial counterparts.

We have discussed before the benefits that such a program would provide, particularly with respect to evening the legal playing field between the legislative and executive branches. It is a start toward, as they say in the LBCWG, “making Congress great again.”